A county attorney says the marijuana grower, who was acquitted on all charges, doesn't have grounds to sue and also filed suit too late.

Feb. 15, 2013

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Larimer County attorneys argue that the government can’t be held liable for 42 marijuana plants that died while being held as evidence in a criminal case.

The plants were cut, bagged and taken as evidence in a felony drug case against Kaleb Young, now 35, who was acquitted at trial after maintaining that they were legal under state medical-marijuana law.

The Colorado Constitution requires that seized medical marijuana be returned on acquittal; after he didn’t get it back, Young filed a lawsuit seeking $210,000 in damages. In response, the county is asking an 8th Judicial District judge to consider the Colorado Governmental Immunity Act, which limits reasons for suing the government.

“The claims he’s making don’t fit with any of the six exceptions,” Deputy County Attorney Jeannine Haag said, adding that Young also waited too long to file the suit.

The plants were taken during a warrant search of Young’s Wellington home in September 2010. Young was acquitted in November 2011. Haag said notice of personal-injury claims against the government must be made within 182 days of the person becoming aware of the issue and Young exceeded that time.

The lawsuit is pending a response by Young, who is represented by Denver lawyer Rob Corry, before Judge David Williams decides on the request to have the case dismissed.

The county included a sworn affidavit from Detective Pete Mesecher supporting its argument to dismiss the case. Mesecher, a defendant along with Sheriff Justin Smith, explained details of how the case against Young unfolded.

Deputies believed the grow was illegal, but Young claimed they were medical marijuana plants, according to Mesecher’s affidavit.

Mesecher, who prepared the affidavit for the arrest warrant, wasn’t there when it was served. He didn’t order the plants to be cut; their destruction was not “pursuant to any policy, custom or procedure adopted by the Larimer County Sheriff”; and the sheriff didn’t order them to be cut, according to the affidavit.

Sheriff Jim Alderden, who was in office at the time of the raid and Young’s arrest, previously told the Coloradoan that his office couldn’t uphold the constitutional requirements to keep medical-marijuana plants alive and that plants held in evidence wouldn’t be maintained. He said he lacked the people, space and resources to do so.

After Young’s plants were cut from their roots and taken away in plastic bags, Mesecher said he didn’t maintain or cultivate the plants because that would have violated state and federal criminal laws. “Notwithstanding” the Colorado Constitution, marijuana is illegal under federal law, according to Mesecher’s affidavit.

Smith has previously said it would be a violation of federal law to dispense marijuana to the public.

Mesecher in the affidavit said all items taken in the Young case, including the dead marijuana stems and leaves of the 42 plants, were returned to Young.

Young’s attorney, Corry, didn’t immediately return a request for comment on the lawsuit.